UPDATE:: See a copy of the letter to Attorney General Eric Holder and Sec. Janet Napolitano attached below.

Since 2010 The DOMA Project has worked closely with a growing number of binational couples providing legal representation and filing green card and fiancé(e) petitions based on their marriages. These couples have participated in a three-part advocacy campaign that targeted elected officials and the White House calling for (1) an abeyance policy (2) a moratorium on “DOMA” deportations (to extend further the protection offered under prosecutorial discretion) and (3) access to humanitarian parole to reunite exiled and separation couples. Today we have reached another milestone in this effort. For the first time since the Supreme Court announced that it will decide the fate of Section 3 of DOMA in its 2012-2013 term, a group of U.S. Senators have called on the administration to hold green card petitions in abeyance. We are especially thankful to Senator Kirsten Gillibrand (D-NY) and her staff with whom we have worked closely for the past two years with a group of lesbian and gay binational couples in New York state. (See text of the letter below.)

DOMA Project co-founder Lavi Soloway noted, “The administration should stop denying these green card petitions, and allow them to remain pending until the Supreme Court rules on Section 3 of DOMA. This will have the immediate effect of protecting our families by allowing foreign spouses of lesbian and gay Americans to remain in the United States and potentially provide eligibility for employment authorization. An unconstitutional law, only months away from final judicial resolution by the Supreme Court, should not be allowed to tear apart our families.”

The DOMA Project was launched by the law firm of Masliah & Soloway in July 2010 to pressure the administration to develop policies that would mitigate the discriminatory impact of DOMA in relation to lesbian and gay binational couples. In March 2011, we stepped up our call for an abeyance policy and began working with elected officials in the House and Senate to urge the administration to stop denying green card petitions filed by same-sex couples. We continue to file green card petitions for married lesbian and gay binational couples in certain circumstances.

The Senators have asked the Obama administration to do the following:

1) Stop denying green card petitions based on Section 3 of DOMA that are otherwise approvable;
2) Put all green card petitions that would otherwise be denied solely because of DOMA on hold until the Supreme Court rules this June; and
3) Implement a moratorium on all deportations involving same-sex binational couples.

As we have argued repeatedly to the administration, none of these remedies contradicts the continued enforcement of DOMA. While DOMA is the law of the land and prevents approval of our green card petitions, there is no need to deny them with the Supreme Court ruling expected in five months. Holding cases in abeyance is a practice that has been used in the past when the law is in a state of flux and a resolution is on the horizon.

We urge all who are reading this to sign our petition to President Obama demanding that all pending green card cases filed by same-sex couples be held in abeyance. Click here to read the text of the petition.

In 2011 and 2012, Senator John Kerry (D-MA) wrote two similar letters to the Attorney General with 12 and 16 signatories, respectively; however, those letters pre-dated the Supreme Court’s announcement that it would decide the fate of DOMA this year.

First and Second Circuit Federal Appeals Courts Have Already Deemed DOMA Unconstitutional, Senators Urge Obama Administration to Temporarily Delay Decisions on Immigration Cases Involving LGBT Couples Until Constitutionality of DOMA Law Is Clarified by the High Court

Washington, DC – U.S. Senator Kirsten Gillibrand (D-NY), an original co-sponsor of the Respect for Marriage Act to repeal the discriminatory Defense of Marriage Act (DOMA), was joined today by Senators Ron Wyden (D-OR), Barbara Boxer (D-CA), Chris Coons (D-DE), Barbara Mikulski (D-MD), Richard Blumenthal (D-CT), Sheldon Whitehouse (D-RI), Bernie Sanders (I-VT), Frank Lautenberg (D-NJ), Al Franken (D-MN), Jeanne Shaheen (D-NH), Jeff Merkley (D-OR), and Patty Murray (D-WA) in urging Attorney General Eric Holder and Homeland Security Secretary Janet Napolitano to temporarily put on hold immigration cases involving permanent resident status and deportation orders regarding same-sex foreign-born spouses of LGBT couples until the Supreme Court rules on the constitutionality of DOMA later this year. Currently, federal immigration benefits do not extend to same-sex couples under DOMA, which places undue hardship on these families while they wait for DOMA cases to be ruled upon by the high court. Already, first and second circuit federal appeals courts have deemed DOMA unconstitutional, as has the Obama administration, whose policy is to no longer prosecute those cases.

“The Supreme Court will soon have its voice heard on this discriminatory policy that has already been deemed unconstitutional by two federal courts,” said Senator Gillibrand. “In light of those earlier decisions, we must lift the hardship for LGBT families who live in fear of separation based on this antiquated law until the Supreme Court rules. Regardless of the Court’s ultimate decision, it is well past time for Congress to recognize the marriages of all loving and committed couples and finally put the discriminatory DOMA policy into the dustbin of history.”

The Senators wrote in a letter to Attorney General Holder and Homeland Security Secretary Napolitano, “We urge DHS to hold marriage-based immigration petitions in abeyance until the Supreme Court issues its ruling on same-sex marriage. Holding these cases in abeyance for a few months will prevent hardship to LGBT immigrant families. We also call upon the Department of Justice to institute a moratorium on orders of removal issued by the immigration courts to married foreign nationals who would be otherwise eligible to adjust their status to lawful permanent resident but for DOMA. By taking these interim steps, vulnerable families affected by DOMA can remain together until the Supreme Court issues its decision.”

DOMA currently prohibits federal immigration benefits for binational LGBT couples, including petitioning on behalf of a foreign-born spouse for a permanent resident visa. As a result, officials have consistently denied same-sex couples’ applications, leaving many in immigration limbo without legal status, in fear of separation from their loved ones and potential deportation.

To ensure that foreign-born LGBT spouses would be able to remain with their families in the U.S. and be allowed to work and freely travel during the time leading up to the Supreme Court verdict, the Senators urged the Homeland Security Department to “hold in abeyance” binational LGBT couples’ immigration petitions and applications and called on the Justice Department to issue a moratorium for deportation cases involving binational LGBT couples who would be eligible for U.S. residency, if not for DOMA.

The letter from Sen. Gillibrand and her colleagues regarding abeyance for same-sex binational couples

Full text of the Senators’ letter is below:

Dear Mr. Attorney General and Madam Secretary:

We continue to applaud the President for his decision not to defend the constitutionality of the Defense of Marriage Act (‘DOMA’) in federal court. We also applaud the Department of Homeland Security (DHS) for including “long-term same-sex partners” under the Administration’s policy that suspends deportations of some immigrants who pose no security risk. These developments are steps in the right direction, but DOMA is still the law of the land and continues to discriminate against a class of Americans.

Following the 2012 election, there are now nine states and the District of Columbia recognizing same-sex marriage with several other states granting similar rights. However with DOMA as law, we are creating a tier of second-class families in these States. DOMA prevents same-sex immigrant spouses of U.S. citizens from successfully applying for permanent resident visas. Fortunately, the U.S. Supreme Court has granted certiorari in Windsor v. U.S. and will determine the constitutionality of DOMA in the next term; by June we will know whether or not applications for lawful permanent residence for lesbian and gay spouses will ultimately be approvable.

Given the historic nature of Windsor v. U.S., we urge DHS to hold marriage-based immigration petitions in abeyance until the Supreme Court issues its ruling on same-sex marriage. Holding these cases in abeyance for a few months will prevent hardship to LGBT immigrant families. We also call upon the Department of Justice to institute a moratorium on orders of removal issued by the immigration courts to married foreign nationals who would be otherwise eligible to adjust their status to lawful permanent resident but for DOMA. By taking these interim steps, vulnerable families affected by DOMA can remain together until the Supreme Court issues its decision.

Preserving family unity is a fundamental American value and is the cornerstone of our nation’s immigration law. Thank you for your decision not to defend the constitutionality of a law that hurts so many families and for your consideration of this request.

3 comments

Marsha James

My wife and I were married in Washington State on 12/12/12, and we have been waiting for 10 years for a chance to apply for a green card. She has a Masters in Social Work with many awards for outstanding academics, and yet here we are…waiting , waiting and waiting.

May God bless all the politicians responsible for approval of this law, since most people have the right to live alongside their partners and have equal rights in marriage as between a man and a woman.

Joao,
The Senators referred to in this post are calling for the same thing as the DOMA Project; that President Obama and the heads of the Federal agencies with oversight for green card petitions begin to implement an abeyance policy.

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This is a pro-bono project of the law firm of Masliah & Soloway, PC. Posts on this website are offered for informational purposes only and do not constitute legal advice. The law firm of Masliah & Soloway, PC has offices in New York and Los Angeles. Our practice is limited to U.S. Immigration & Nationality Law.